Jones v. State , 151 Tex. Crim. 519 ( 1948 )

The conviction was for offering a bribe to Steve Guthrie, the Sheriff of Dallas County, with a penalty of three years in the state penitentiary.

The very lengthy statement of facts in this case is composed of the regular transcript of testimony received from the witness box together with a motion picture film and forty-two phonograph records, the latter of which were also transcribed and presented in writing. We note, however, that neither the motion picture films nor the phonograph records were offered in evidence. The appellant accedes to this view, as stated on page 7 of his brief, in the following language: "That neither the records nor the picture film were offered in evidence as exhibits nor marked as such." The questions regarding them will not, for that reason, be discussed.

Guthrie had been elected sheriff at the general election in Dallas County on November 5, 1946. The offense is alleged to have been committed on the 7th day of November, thereafter. Guthrie did not take office under the law until the 1st day of January, 1947. The prosecution is under Article 158, Vernon's Ann. P. C.

As leading up to the commission of the offense, the State was permitted to prove various acts and declarations of the defendant, of George Butler, a city detective, of Steve Guthrie, and others, long prior to the general election. The votes cast at the election were canvassed by the commissioners court on the 14th day of November, 1946. The results thereof were declared and certificate of election issued to Steve Guthrie on November 21st, following. It is the contention of the defendant that under the foregoing state of facts Steve Guthrie was, on the date alleged in the indictment, merely an individual, and continued to be such until the first day of January following; that he was neither a de jure officer nor a de facto officer. He further contends that there is no such officer as a "sheriff-elect" and, therefore, prosecution could not be had under the foregoing Article of the Statute. Based on these contentions, together with numerous others, the defendant filed and presented his motion to quash the indictment. This was overruled.

When the case came on for trial, on the 7th day of April, 1947, Steve Guthrie was the sheriff and the officers serving the court were his deputies. It appears from the testimony that during the negotiations leading up to and at the time of the offer of the bribe, Steve Guthrie, with the aid and assistance of the Department of Public Safety in Austin, had wired his house where the offer was made so as to receive and record the conversations, by making the records for a phonograph herein above described. All of such conversation related to the transaction, or to social events. When the evidence was offered this fact was revealed and, at the conclusion of the oral testimony on the subject, the prosecution offered to appellant's counsel these records with the privilege of playing them to the jury, if he so desired. Appellant's brief says: (page 6) "The State tendered to the defendant, or rather his counsel, said records in open Court, stating that they would have a right to play them as they so desired. The defendant promptly tendered the same back to the State and challenged them to play them word by word, the defendant being ignorant of the fact that a large portion thereof could not be heard by the jury."

If a distinction is to be made between offering an instrument in evidence and reading it to the jury, this is a good illustration. The above quoted paragraph concedes that they were not offered in evidence, and any further discussion of them may be thereby pretermitted.

Summarizing the matters at issue, appellant contends that the court should have sustained the motion to quash; that he should have appointed a disinterested officer to wait upon the court and to take charge of the jury, and perform any duties devolving upon such sheriff; that the court should have submitted appellant's special requested charges (to be hereinafter considered); that the court should have corrected his charge to the jury in accordance with the objections and exceptions leveled at the same; that defendant was deprived of a statement of facts (this pertains only to the records and motion picture film, and will have no further consideration); it is further contended that the evidence is insufficient to sustain the conviction.

The appellant is chiefly concerned with repeated statements and lengthy discussions regarding the language of Article 158 of the Penal Code, which reads as follows: "Whoever shall bribe or offer to bribe any executive, legislative or judicial officer after his election or appointment, and either before or after he shall have been qualified or entered upon the duties of his office, with intent to influence his act, vote, option, decision or judgment on any matter, question, cause or proceeding which may be then pending or may thereafter by law be brought before such officer in his official capacity, or do any other act or omit to do any other act in violation of his duty as an officer, shall be confined in the penitentiary not less than two nor more than five years."

This is contrasted with and interpreted further by reason of the passage, by the same legislature which enacted it, of the present Article 173 of the Penal Code, reading as follows: "Whoever shall bribe, or offer to bribe, a sheriff or any other peace officer to do or to omit to do any other act not heretofore enumerated in violation of his duty as an officer, shall be confined in the penitentiary not less than two nor more than five years."

The basis of the argument in favor of their motion to quash is arrived at by application of the doctrine of ejusdem generis, that is, that when the legislature defined what is meant by "legislative, executive or judicial officers," in Article 158, it added a long list of such officers and then finally the general words, "* * * and all other city, county and state officials." He contends that the last quoted phrase relates only to that class which had been enumerated, and did not add sheriffs and other peace officers to the list enumerated. The quoted Article 173 is given in support of that contention.

Our government is divided into three branches, and only three — the executive, the legislative and the judicial. All officials provided for in the constitution must come under one class or another. The sheriff and other peace officers are not engaged in making law, they are not engaged in the interpretation of the law, but in the enforcement of law. They are, therefore, of the executive department, and are included in the general statement in the statute irrespective of and independent from the quoted clause. We do not consider that the doctrine of ejusdem generis has application, but even so, it would include the sheriff and all other county and state officers. They each belong to one of the three branches.

The next question which arises in the brief is whether or not a party may be prosecuted for offering a bribe to one before he becomes the enumerated officer. The articles of the statute specifically says so. The case of Davis v. State, 158 S.W. 288, passes upon the inclusiveness of the general terms and is authority for the expression herein above, that "* * * 'executive, legislative, or judicial officer' are used in their broadest sense and are intended to embrace every officer, whether state, county or precinct."

We see no grounds for his interpretation of this statute. The language is plain and clear and means that an offer to bribe one who has been elected to an office constitutes the defined offense, even though it is made prior to the time he took the oath of office. The date relates to the date of the election. The acts of the commissioners court thereafter, in canvassing the returns, declaring the results, and directing the issuance of a certificate of election, are purely perfunctory. The court properly overruled the motion.

The second complaint, relating to the failure of the court to disqualify the sheriff and his deputies and appoint a constable, or his deputies, to serve the court during the trial of the case, is the next matter for consideration. All deputy sheriffs are appointed by the sheriff himself. Steve Guthrie was the prosecuting witness in the present case. The presumption of law prevails that all officers will do their duty honestly and fairly and in the absence of a showing that they will not do so, it is within the sound discretion of the trial judge as to whether or not they should be replaced in the performance of the duties involved. Evidence was offered on the subject when the matter was presented to the court. This was heard and passed upon by the Honorable Winter King, trial judge. T. G. Nowlin, who acted as bailiff of the court, testified that he would act fairly and impartially, and that he would not undertake to influence the jury in arriving at a verdict in the case. There is no indication that he did so. The court evidently knew the bailiff. He reposed confidence in him and passed on the question of fact at issue. We see no grounds upon which it may be disturbed.

The third question discussed must rest upon the correctness of the contention made that the indictment should be quashed. Admittedly, there is no such officer as "sheriff-elect." That term as used in the indictment and explained by the evidence could mean nothing further than that Steve Guthrie had been elected sheriff and had not, at the time alleged, taken the oath of office. The court properly refused to instruct the jury that Steve Guthrie was not "sheriff-elect" until the votes had been canvassed by the commissioners court.

Another special requested charge was on the issue of whether or not the matter of the bribe originated with Steve Guthrie or the accused. We find no evidence which would raise this issue, and the court properly refused it. The officer had the right to lead him on, after he had been approached, and to trap him in doing so. The facts are distinguished from a case in which a county attorney suggests to a party that he offer his assistant a bribe, and thereby becomes an accomplice whose evidence would require corroboration. The elements of entrapment are not in the case now under consideration.

The fourth section of the brief discusses the court's failure to sustain the several objections and exceptions leveled at the court's charge. Most of these exceptions are general and a discussion thereof will not be necessary, in view of the foregoing matters which we have discussed. The court is not required to charge on circumstantial evidence because the evidence to support the conviction was direct. Additional circumstances only corroborated the direct testimony and do not call for a charge on circumstantial evidence. This question has been so frequently decided the citation of authorities will not be necessary.

Other complaints found discussed in the brief relate to the argument of the district attorney, or that of his assistant. Bill of Exception No. 5 quotes the district attorney as saying, "I want to point out to you that, although they have witnesses subpoenaed, they didn't bring a single witness to deny it." Objection was made to this argument on the ground that no testimony was introduced showing that any witnesses were subpoenaed by appellant, and that it was a direct reference to the defendant's failure to testify. The court sustained the objection. Nevertheless, the complaint is made that the injury was done. If this argument had referred to the failure of the defendant to testify it would be reversible error. We are unable, however, to determine from the bill what it had reference to and will not be in position to say that it was error.

Other bills of exception, as qualified by the court, fail to show error. We note the attack made on these bills, and the construction sought to be given to them. Counsel refused to accept the qualified bills and the court, thereafter, prepared his own bills by adopting the bills presented together with the court's qualification. The complication thus brought about is by reason of the death of the lamented District Judge Winter King, before the appeal was perfected. Whatever the objections there may be to the bills become immaterial because there are no bystanders bills to supplant them. If they are not proper, appellant would be no better off for he would have no bills at all.

We have reviewed every complaint presented in this record, and considered the argument and authorities in appellant's brief, and find no error calling for a reversal of the case. The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.